SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE

Transcription

1 Susan Nash (State Bar # 1) Law Office of Susan Nash P.O. Box 0 Idyllwild CA Telephone: (0) - Fax: (1) -1 snash@earthlink.net Attorney for Petitioners/Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE ALBERT THOMAS PAULEK; FRIENDS OF THE NORTHERN SAN JACINTO VALLEY, Petitioners/Plaintiffs, vs. CITY OF MORENO VALLEY; AND DOES 1 through 0 inclusive Respondent, HIGHLAND FAIRVIEW, a privately held real estate development company, and Does 1 through 0, inclusive Real Party in Interest Case No. PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF [Code Civil Proc. and.; Pub. Res. Code 00, et seq. (California Environmental Quality Act] Case Designation: CEQA 1 Type Footer Info Here («Matter Primary Court Case #»)

2 INTRODUCTION 1. In this action, Petitioners and Plaintiffs Albert Thomas Paulek (Paulek) and the Friends of the Northern San Jacinto Valley (Friends) challenge the August 1, 01 decision by the Moreno Valley City Council (Respondent) to approve the World Logistics Center Project (WLC or Project) and certify the Environmental Impact Report (EIR) for the Project.. The Project evaluated in the Draft EIR (SCH No. 010) covers 1 acres and proposes a maximum of 1. million square feet of high-cube logistics warehouse distribution uses classified as Logistics Development (LD) and 00,000 square feet of warehouse-related uses classified as Light Logistics (LL) on, acres with the WLC Specific Plan. Project refers to all related development and planning activities currently proposed by Highland Fairview (Real Party in Interest) in the eastern end of the City of Moreno Valley. The Project site is generally located south of SR-0, east and north of Mystic Lake and the San Jacinto Wildlife Area managed by the California Department of Fish and Wildlife (CDFW) in Trust for the People of California. The Draft EIR Project Area refers to the entire,1-acre area covered by the EIR, which encompasses (a) the Specific Plan Area (, acres); (b) the CDFW Conservation Buffer Area ( acres) (c) the Public Facilities Land Area (1 acres); and (d) the Off-site Improvement Area ( acres).. Over 0 years ago, the SJWA was established as a mitigation site for the State Water Project, the transformative project that brought northern California water to southern California. Over the ensuing years the State of California s Wildlife Conservation Board continued to acquire lands and secure a long-term recycled water source for the new wildlife area. Today, the SJWA includes 1,000 acres of plant and animal habitats managed by the CDFW. The SJWA includes the,000 acre Davis Road Unit, which shares a common property line with the southern boundary of the WLC Specific Plan and the easterly,000 acre Potrero Creek Unit. The SJWA represents over a $0 million dollar public investment in wildlife conservation and has developed into the most significant state wildlife conservation site in southern California.. The Riverside County Habitat Conservation Agency (RCHCA) was formed in 10

3 for the purpose of planning, acquiring and managing habitat for the Stephens kangaroo rat (SKR) and other endangered, threatened and candidate species. The RCHCA is a Joint Powers Agreement agency. The City of Moreno Valley is a signatory to the SKR Incidental Take Permit [Implementation Agreement (IA)] allowing the take of SKR and designating the SJWA a Core Reserve [SKR Conservation Area] pursuant to the federal Endangered Species Act, 1 U.S.C. 11 et seq. and the State Natural Community Conservation Planning Act [Fish and Game Code 00-).. The Western Riverside County Regional Conservation Authority (RCA) was created in 00 to implement the Multiple Species Habitat Conservation Plan (MSHCP) protecting 1 native species of plants and animals. The City of Moreno Valley is a signatory to the MSHCP Incidental Take Permit [Implementation Agreement (IA)] allowing the take of MSHCP covered plants and animals and designating the SJWA Conserved Habitat pursuant to the federal Endangered Species Act, 1, U.S.C. 11 et. Seq. and the state Natural Community Conservation Planning Act (Fish and Game Code 00-).. The CEQA review of the Project recognized numerous significant impacts resulting from the construction and subsequent operation of the WLC Specific Plan. The Specific Plan proposes a massive warehouse development immediately adjacent to the environmentally sensitive public lands of the SJWA and Lake Perris State Recreation Area. These public lands are now designated Core Reserves and Conserved Habitat under the SKRHCP and the MSHCP.. Instead of disclosing and analyzing the impacts on the environment in order to address the Project s significant impacts, the EIR fails to provide a complete and accurate depiction of the Project and its environmental setting. As a result of the EIR s flawed analysis, environmental impacts were dismissed without substantial evidence and contrary to the California Environmental Quality Act (Pub. Res. Code 00 et seq. CEQA ). The EIR also fails to follow the substantive mandate of CEQA and neglects to require adoption of feasible mitigation measures and alternatives that would lessen the Project s significant impacts, especially those related to Biological Resources.

4 Petitioners accordingly request that this Court issue a writ of mandate under Cal. Code of Civil Procedure and. directing Respondent to vacate and set aside the approval of the Project and certification of the EIR. This request is based on the following allegations: JURISDICTION AND VENUE. This Court has jurisdiction over this action pursuant to sections,., 1, and of the California Code of Civil Procedure, and sections and. of the Public Resources Code.. Venue for this action properly lies in the Riverside County Superior Court because Respondent and the proposed site of the Project are located in Riverside County. THE PARTIES 1. Petitioner/Plaintiff ALBERT THOMAS PAULEK (Paulek) is a retired (. years) Department of Fish and Wildlife Associate Wildlife Biologist and was the area manager of the Department s SJWA from 11 to 00. Paulek is a Certified Wildlife Biologist having extensive knowledge and experience working with the wildlife resources and conservation programs of western Riverside County and the state of California. Paulek participated in the CEQA review of the Project as an individual and as the Conservation Chair of the Friends of the Northern San Jacinto Valley. Petitioners seek to compel the City of Moreno Valley to properly implement its CEQA duties to avoid and mitigate Project impacts to the plant and animal resources of western Riverside County and the state of California and to conserve existing and future wildlife habitat values of the San Jacinto Wildlife Area. 1. Petitioner/Plaintiff the FRIENDS OF THE NORTHERN SAN JACINTO VALLEY (Friends) is a California non-profit conservation group dedicated to preserving and protecting the northern San Jacinto Valley, the San Jacinto Wildlife Area, and surrounding environmental resources. Friends members reside and recreate in the San Jacinto Valley area of Riverside County. The organization sponsors regular nature walks and environmental restoration activities at the SJWA and works to influence a wide variety of land use issues that affect the SJWA, Mystic

5 Lake, and the northern San Jacinto Valley. 1. Petitioners presented written comments and objections during the administrative hearings on this matter being challenged in this petition. Petitioners and their members would be directly, adversely and irreparably affected if the Project proceeds. Petitioners would continue to be prejudiced by the Project and its components, as described herein, until and unless this Court provides the relief prayed for in this petition. 1. Respondent CITY OF MORENO VALLEY was incorporated in 1 as a general law city. A council-manager government governs the City. The City is divided into five districts, each of which elects a representative to the city council. On August 1, 01, the Moreno Valley City Council voted to approve the World Logistics Center Specific Plan and certified the Final EIR for the Project. 1. Does 1 through 0, inclusive are persons presently unknown to Petitioners, which are subdivisions or officers of the City or state of California, who are responsible for the actions described herein or for carrying out the functions of the city or state and who may be affected by this litigation. Petitioners will amend this petition to specifically identify each respondent as required and as the capacity and identity of each respondent becomes known. 1. Petitioners are informed and believe and based thereon allege that the Real Party in Interest HIGHLAND FAIRVIEW is a privately held real estate development company specializing in large scale industrial, commercial, and residential developments. Iddo Benzeevi is the President/Chief Executive of Highland Fairview. Highland Fairview is the developer of the Project and is headquartered in the City of Moreno Valley. Highland Fairview is the recipient of the August 1, 01, Moreno Valley City Council approval of the Project. 1. Does 1-0, inclusive, are persons presently unknown to petitioners and who have a legal interest in the project being challenged herein, or are the property owners, developers, or others with a legal or equitable interest in the real property at issue herein. Petitioner will amend this petition to specifically identify each such respondent as required and as capacity and identity of each such respondent becomes known.

6 GENERAL ALLEGATIONS 1. Petitioners hereby re-allege and incorporate the allegations set forth in paragraphs 1 through 1 inclusive. 0. The public lands of the San Jacinto Wildlife Area immediately south and contiguous with the WLC Specific Plan southern boundary were acquired by the state Wildlife Conservation Board (WCB) in fee simple in May 001. The WCB minutes of May 1, indicates the acquisition of these public lands was funded using the Safe Neighborhood Parks, Clean Water, Clean Air and Coastal Protection Bond Act of 000 (Proposition 1). 1. The May 1, 001 WCB minutes indicate funding for these wildlife conservation lands was made pursuant to Proposition (a)() T & E for the restoration or acquisition from a willing seller of habitat for threatened and endangered species or for the purpose of promoting the recovery of those species. Proposition 1 made the funds available for expenditure by the WCB for acquisition, development, rehabilitation, restoration and protection of real property benefiting fish and wildlife, for the acquisition, restoration, or protection of habitat that promotes the recovery of threatened, endangered or fully protected species, maintain the genetic integrity of wildlife populations and serves as corridors linking otherwise separate habitat to prevent habitat fragmentation. The Western Riverside County Regional Conservation Authority (RCA) was created in 00 to implement the Multiple Species Habitat Conservation Plan (MSHCP). The MSHCP impetus is to assure the conservation of 1 species of plants and animals on designated reserve lands [the SJWA is the most significant MSHCP core reserve] in order to mitigate the take [loss] of species incidental to the development of lands not designated for MSHCP conservation. Similarly, the SKR Habitat Conservation Plan [state and federal endangered species take permits] includes the SJWA as a primary core reserve to mitigate the incidental habitat impact resulting from the development of lands not designated for SKR conservation.. Of the 1. million acres covered by the MSHCP, 00,000 acres are designated for 1 Submitted with Petitioner s comment letters on the Draft EIR, April, 01 and the Final EIR, June, 01, for inclusion in the administrative record.

7 wildlife conservation. Of that half million acres,,000 acres were already conserved as public or quasi-public land. The acquisition of the remaining 1,000 acres [additional reserve lands] for MSHCP wildlife conservation is the primary function of the RCA. After the 00 approval of the MSHCP, the 001 WCB Proposition 1 land acquisitions of approximately 1,000 acres were immediately included in the MSHCP Conservation Area and Counted toward the Additional Reserve Lands.. In February 01 the CEQA Notice of Preparation (NOP) of a Draft EIR was circulated to the public, Trustee and Responsible agencies for comment. Petitioner s March, 01 NOP response letter advised the City of Moreno Valley that the NOP was deceptive in that the WLC Specific Plan wrongly identified the public lands acquired by the WCB in May 001 as the CDFW Conservation Buffer Area. Similarly, the March, 0 NOP response letter from the California Department of Fish and Game, the state agency having jurisdiction by law over fish and wildlife resources, advised the City of Moreno Valley regarding the defective Project description, the need for compliance with the requirements of CEQA, the MSHCP, the SKRHCP and the incidental take permits for endangered, threatened, and/or candidate species (Fish and Game Code 00 et seq.). The Draft EIR was released for public and agency review in February 01. The CEQA review presented by the City of Moreno Valley and the Project proponent fashioned straw man fallacies using the CDFW Conservation Buffer Area and the SJWA Open Space designation. In doing so they sought to avoid addressing the mandatory significant impacts to biological resources the WLC will have. The straw man fallacies were presented in the EIR to avoid the required CEQA consideration of significant impacts to the public lands of the SJWA, the MSHCP, the SKRHCP, and the wildlife conservation mandates of the state of California. The Final EIR used a different Project boundary line to analyze impacts to the SJWA.. Petitioners have exhausted all administrative remedies by submitting written comments to the City of Moreno Valley prior to the Project s approval to request The Department s name was changed to Fish and Wildlife on January 1, 01.

8 compliance with CEQA and the completion of full and adequate environmental review. All issues raised in this petition were raised before Respondent by Petitioners, other members of the public, or public agencies prior to the approval of the project.. Petitioners have complied with Public Resources Code section. by prior service of a notice upon the City of Moreno Valley indicating its intent to file this petition. Proof of Service of this notification with the notification, is attached as Exhibit A.. Petitioners have elected to prepare the record of proceedings in the abovecaptioned proceedings or to pursue an alternative method of record preparation pursuant to Pub. Rec. Code.(b)(). Notification of the Election to Prepare the Administrative Record is attached as Exhibit B.. Petitioners have served a copy of this Petition on the Attorney General s office to give notice of Petitioner s intent to bring this proceeding as a private attorney general under Code of Civil Procedure section `1., which notice is attached as Exhibit C. 0. Petitioner s have filed and served a request for Hearing and thus complied with Pub. Res. Code.. A copy of that notice is attached as Exhibit D. 1. This petition is timely filed in accordance with Public Resources Code section and CEQA Guidelines 1.. Respondents have abused their discretion and failed to act as required by law in the following ways: FIRST CAUSE OF ACTION VIOLATION OF CEQA (PUBLIC RESOURCES CODE 00, et seq.) The City of Moreno Valley did not comply with CEQA. Petitioners hereby incorporate by reference each and every allegation set forth above.. CEQA requires a lead agency for a project to prepare an EIR that complies with the requirements of the statute. The lead agency must also provide for public review and comment on the project and associated environmental documentation. An EIR must provide sufficient environmental analysis such that decision makers

9 can intelligently consider environmental consequences when acting on proposed projects.. Respondents violated CEQA by certifying an EIR for the project that is inadequate and fails to comply with CEQA. Respondents: a. Failed to adequately disclose or analyze the project s impacts on the environment, including but not limited to, the project s impacts on biological resources, the San Jacinto Wildlife Area, the MSHCP and the SKRHCP. b. Failed to provide a stable, consistent and adequate description of the project, which prohibited an accurate depiction of the project s impacts on the environment. c. Failed to provide an adequate description of the existing environmental settings of the project, vicinity, and regional context. d. Failed to adopt a consistent and appropriate environmental baseline for analysis of the project s environmental impacts that contributed to the EIR s flawed analysis of environmental impacts. e. Failed to adequately identify and analyze the project s biological resource impacts including direct, indirect and cumulative impacts on the SJWA, the MSHCP, the SKRHCP and wildlife resources. f. Failed to adequately identify, analyze and adopt all feasible mitigation measures and/or alternatives that would minimize direct, indirect and cumulative impacts on biological resources. g. Improperly relied upon regional plans to avoid full disclosure and mitigation of the project s impacts. h. Improperly deterred impact analysis and mitigation measures in contravention of CEQA s requirement that mitigation measures be clearly defined and enforceable. i. Failed to adopt feasible mitigation measures and alternatives to reduce or avoid significant impacts in direct contravention of CEQA s substantive mandate that all feasible mitigation measures be adopted to avoid or reduce a project s significant and potentially significant impacts. j. Failed to consider a reasonable range of alternatives by improperly dismissing feasible alternatives, including those recommended by the public, trustee and

10 responsible agencies and relying upon an improperly narrow list of project objectives to justify the elimination of feasible alternatives. k. Failed to properly disclose, analyze or mitigate conflicts with existing local, state and federal laws. l. Failed to adequately respond to comments submitted by the public and governmental agencies during review of the EIR. m. Failed to recirculate the EIR, or any portion of the EIR, despite the availability of significant new information within the meaning of Public Resources Code section.1 and CEQA Guidelines 10.. n. Failed to adopt an adequate Mitigation Monitoring or Reporting Program in order to assure that the mitigation measures and program revisions identified in the EIR are implemented. o. Failed to adopt adequate findings that alternatives to the project and proposed mitigation measures and alternatives that would have avoided or lessened the significant impacts of the project were infeasible and failed to disclose the readily available mitigation measures and alternatives that would meet the basic project objectives.. As a result of the foregoing defects, Respondent prejudicially abused their discretion by certifying an EIR that does not comply with CEQA and by approving the project in reliance thereon. Accordingly, Respondent s certification of the EIR and approval of the project must be set aside. 0 1

11 1 1 PRAYER FOR RELIEF WHEREFORE, Petitioners pray for relief as follows: 1. For alternative and preemptory writs of mandate, commanding Respondent: A. To vacate and set aside all approvals of the Project. B. To suspend any and all activity pursuant to Respondent s approval of the Project until Respondent has complied with all requirements of CEQA as are directed by this Court pursuant to Public Resources.. For a stay, temporary restraining order, preliminary injunction, and permanent injunction prohibiting any actions by Respondent pursuant to Respondent s approval of the Project until Respondent has fully complied with all requirements of CEQA.. For a declaration that the Project Approval is inconsistent with CEQA.. For costs of suit.. For Attorney fees pursuant to the Code of Civil Procedure section 1.; and. For such other and further relief as the Court deems just and proper Dated: September, 01 By Susan Nash Attorney for Petitioners and Plaintiffs ALBERT THOMAS PAULEK FRIENDS OF THE NORTHERN SAN JACINTO VALLEY